CAM: Hey, this is Cam (ph) in Umea, Sweden. I'm a professional soccer player.
MARA LIASSON, BYLINE: Ooh.
CAM: And exactly a week from today, I'm headed back to Texas for my summer break. This podcast was recorded at...
TAMARA KEITH, HOST:
1:05 p.m. on Monday, July 1.
CAM: So things may have changed by the time you hear it. OK, enjoy the show.
(SOUNDBITE OF THE BIGTOP ORCHESTRA'S "TEETER BOARD: FOLIES BERGERE (MARCH AND TWO-STEP)")
LIASSON: I think that's our first professional soccer player time stamp.
KEITH: Hey, there. It's the NPR POLITICS PODCAST. I'm Tamara Keith. I cover the White House.
CARRIE JOHNSON, BYLINE: I'm Carrie Johnson. I cover the Justice Department.
LIASSON: And I'm Mara Liasson, senior national political correspondent.
KEITH: The Supreme Court's conservative supermajority has ruled that the president of the United States has immunity from prosecution when it comes to core duties of the office. Carrie, they were considering this with respect to charges brought by special counsel Jack Smith against former President Donald Trump in connection with his actions on and around January 6. So we will get to the broader implications of this decision in a moment. But what does this mean for the special counsel's case?
JOHNSON: We're going to find out in the weeks and months ahead. But my initial reaction, Tam, is that this is very bad news for the special counsel's case. Remember, Trump faces four charges here in Washington, D.C. - conspiracy to deprive voters of their rights in the 2020 election, conspiracy to defraud the United States and conspiracy and charges for obstructing the official proceeding. And as part of that case, prosecutors alleged a bunch of activities that Donald Trump engaged in - things like leaning on Vice President Mike Pence, things like threatening to fire or remove the acting attorney general for not doing what he wanted and things like leaning on state election officials.
And based on the majority opinion today, written by Chief Justice John Roberts, some of that conduct is now totally out of bounds for prosecutors, and other conduct is now in danger. And so the court majority has sent this matter back to the district court, back to trial judge Tanya Chutkan, with instructions for her to go through and basically do a painstaking analysis of what part of this special counsel case should remain.
KEITH: And Carrie, when we were talking before we came to the studio, you said that what this means for evidence in the special counsel's case may be bigger than any of the individual charges.
JOHNSON: That's absolutely right. So while it seems likely, based on the way the Supreme Court has written this majority opinion, that the conduct with respect to the Justice Department - trying to get the Justice Department to send a letter to states about sham election fraud allegations, things like that - that may be totally out of bounds. The conduct with respect to leaning on Vice President Mike Pence in advance of January 6 - that's nebulous right now. The Supreme Court majority said Pence was acting in his capacity as president of the Senate, but a president should be able to talk to the vice president about his prerogatives and priorities in the Senate. So we don't know if that remains.
And then, with respect to the other stuff, Tam, the Supreme Court majority said here that if a president is immune, prosecutors can't include any evidence of any of that kind of stuff in the case. And the Special Counsel Jack Smith had wanted to present to a jury some of these allegations basically to say that Donald Trump knew he had lost the 2020 election and this whole thing was an effort to cling to power, unlawfully depriving people of their votes and defrauding the United States government of its priorities. And so because the court ruled in this way, a lot of evidence may be lost to the jury. And interestingly enough, this was the one point where Justice Amy Coney Barrett, a Trump appointee, actually wrote separately.
KEITH: Meaning that she didn't agree with that.
JOHNSON: She did not agree with that part. She basically said, Tam, if a president is accused of bribery, of course you've got to be able to prove that charge based on an official action the president took as part of the quid pro quo. That, to her, didn't make any sense - that conclusion by the majority.
LIASSON: So Carrie, are the justices saying that it is now legal - or at least the president would be immune from prosecution - if he tried to stay in power illegally?
JOHNSON: Well, the things that seem to be clear under the Supreme Court majority opinion are things like using the pardon power in certain ways and threatening to remove or actually removing cabinet officials because the president wanted something done or not done. And under the way that Chief Justice John Roberts has written this majority opinion, the president seems to have a lot of control over Justice Department investigations and prosecutions. All those things are now clear, bright lines that were not clear before because, of course, we had no precedent in this area. No former president has ever been charged with a crime. And now the Supreme Court has granted a president who, after all, is a branch of government, John Roberts said, with a lot of power here - a lot of power it wasn't clear he had before today.
KEITH: It sounds, Carrie, like you are saying that the court essentially said the president of the United States can use his official powers to do things that are unofficial - to use the levers of the power of the government for ends that may have nothing to do with his job as president.
JOHNSON: We're going to see how that plays out at the district court level as Judge Tanya Chutkan - who, after all, had wanted to go to trial in this case on March 4 of 2024 - she's going to have a lot of work to do. And the question now is whether she's going to be able to get that work done before the November election. It seems really unlikely because, based on my read of the Supreme Court opinion, if Donald Trump doesn't agree with some of her decisions on what's official and what's not official, he may be able to appeal that all over again to higher courts. And so it's going to be, first of all, her job and then the appeals court's job to decide where those lines are.
LIASSON: The incumbent president now has tremendous powers. As a candidate for reelection, he has tremendous powers over the election that his opponent would not. In other words, he can use his official capacity to pressure people, to tell the vice president not to certify electoral college votes. He can do all of those things. His opponent cannot do any of those things without being prosecuted, but the president can. Is that fair?
JOHNSON: Not quite.
LIASSON: Oh, OK.
JOHNSON: So with respect to the vice president, that's a little bit of a nebulous area. That has been sent back down to the trial judge for more fact-finding. But John Roberts was uncomfortable with drawing a bright line about what presidents can and can't say to their vice president when they're presiding over the Senate. And the key part of this case that actually may survive all of this scrutiny and the Supreme Court majority opinion today is the part of the case where Donald Trump was allegedly pressuring state election officials and private actors. Trump is accused of conspiring with people like Rudy Giuliani and the lawyers John Eastman and Kenneth Chesebro to lean on state officials and put forward phony slates of electors in advance of January 6.
And Trump, in that capacity, appears to have been acting as a candidate - as a man seeking election - or reelection as it were - as opposed to the president of the United States. But the Supreme Court majority did not make that explicitly clear, and that's one thing the dissent was upset about. The dissent, written by Justice Sonia Sotomayor and joined by the other two liberals, Elena Kagan and Ketanji Brown Jackson, basically said the majority didn't need to go this far at all. The majority has given Trump and...
KEITH: And future presidents.
JOHNSON: ...And, indeed, future presidents, too much of a shield here. And it has carved out all of these areas - these vast areas of immunity from prosecution. But the Court should have said that the part of the case against Trump that could go forward relates to this fake slate of electors. And the court majority wasn't clear there. It just sent it back down.
And so the dissenting justices - the liberal wing of this court - basically accuses the majority of doing too much and too little simultaneously. And, in fact, the Sotomayor dissent is just absolutely blistering. She says that the majority has reshaped the institution of the presidency and made a mockery of the principle that no man is above the law.
KEITH: All right, we are going to take a quick break - and when we get back, more about the Supreme Court's decision.
And we're back. And, Carrie, you alluded to the fact that Judge Tanya Chutkan has a lot of work to do, and it could take a long time. But let's just be clear. What does this mean for the chances of a jury seeing this case before the November election?
JOHNSON: I don't think that's going to happen. I think there's too much work to do. And if Trump indeed has the ability to appeal Judge Chutkan's decisions about what's an official act and what's a private or a personal act, then there's no way this case even gets to start before a jury before the election. And interestingly enough, you know, many people - people in the political sphere, and many lawyers and law professors - chided the Supreme Court for taking so long to take up this case to begin with. Remember, the special counsel wanted it to get before the Supreme Court in December. The Supreme Court said no.
They eventually took it up. They scheduled argument for the last day of arguments, April 25, and now they've handed down this decision on the last day of the term. But John Roberts and his majority basically said this is a question of lasting significance - one that will go beyond Donald Trump - and we cannot focus on the present exigencies, like the idea there's an election. In fact, we're interested in the enduring separation of powers. That may be so. But at this point, given the court's decisions about when to act and how to act, they've basically made it clear that there can't be a trial on these charges before the election.
KEITH: And Mara, there is an election happening right now, and one of the candidates is also the subject of all of this legal drama in this case because he was trying to cling to power last time. So talk to me, Mara, about how this is all being messaged in the campaign.
LIASSON: Well, certainly, the Trump campaign will say that, you know, they prevailed. This is a victory for them. They'll be, you know, running a victory lap. You hear a lot already from the Biden campaign and lots and lots of Democratic elected officials that the Supreme Court has paved the way for a kind of presidential dictatorship and that this is one of the reasons that people have to get out and vote for Democrats - so that they can make sure the next Supreme Court appointments, whenever that may be, are not more partisan Republican judges. That's how they see it. They see this Court not just as conservative, but as partisan - going out of its way to help Donald Trump escape these prosecutions.
KEITH: And Trump, on Truth Social, is saying that every case against him, even in state courts, should be thrown out, which isn't a thing. And he says he's proud to be an American again because of this victory. And, Carrie, while we're talking about politics around the Court, we can't ignore that the majority, in this case, included two justices, Justice Thomas and Justice Alito. Both men had potential conflicts of interest, but they chose not to recuse themselves. So what does this mean for the reputation of the Court?
JOHNSON: There have been calls for two of the justices to recuse themselves from hearing this case. That would be Justice Sam Alito and Justice Clarence Thomas. Justice Thomas' wife, of course, was exchanging text messages with Trump's chief of staff, Mark Meadows, and showed up at the rally before the storming of the Capitol on January 6. And Justice Alito's wife flew flags at their home and at their beach house that have been used by people who advanced bogus allegations of election fraud in 2020.
LIASSON: This Supreme Court has had a lot of ethical questions raised, as you guys just discussed. The public's view of the court is at an all-time low, and I'm wondering what you think this decision will do to the court's reputation.
JOHNSON: Well, I think it is true that public confidence in the court is really at a low ebb at this moment. The question is, what can be done about it, and who can do it? There's been a lot of public commentary about the powers of the chief justice. He doesn't really have a lot of power to force these other justices to back away from a case. And there are highfalutin theories that members of Congress have put forward about the Justice Department potentially petitioning the other justices to knock some of their colleagues off these cases. This is just not going to happen in the reality-based community.
And so the question is whether Congress is going to step up in some fashion. And the question is whether Congress can do certain things about giving the court jurisdiction over certain issues, taking jurisdiction away from the court about other issues, threatening the court's budget in some respects. Congress has a lot more power with respect to the court than it's been using, and I think it's up to Congress to erect some fences around these justices and their ethics because the court doesn't seem interested or willing to do that itself.
LIASSON: That's right. And I think you're going to hear much more talk about Congress not just reining in the court's jurisdiction, but also, you're going to hear about term limits. You're going to hear suggestions for 18-year terms for Supreme Court justices, which would - when it would be fully implemented, would give each president a guarantee of two nominations. I think that court-packing is probably less likely, but you're going to hear a lot of calls for reforming the court.
KEITH: Mara, I do want to ask you - Democratic voters have not traditionally been super motivated by the Supreme Court - not in the way that Republicans were. As a voting matter, do you think that the dynamic has changed this year?
LIASSON: Yes, I think that anytime abortion is on the ballot, the Supreme Court is on the ballot. And for 50 years, as conservative activists kept their eye on the ball, they wanted to overturn Roe. They didn't let anything deter them. They created the institutions they needed, like the Federalist Society, to get judges on the courts where they needed them. And they prevailed. They never gave up.
Democrats, on the other hand, spent the last 50 years kind of leaning back in their Barcaloungers, thinking that the court would protect them - that Roe was some kind of an etched-in-stone decision forever and ever. Well, now they know better, and I think that the Supreme Court has become more of a voting issue for Democrats. And this is going to be yet another example of why Democratic voters should care about the courts.
JOHNSON: And I'd point out that, in a number of these swing states or very important states, abortion is on the ballot in terms of state referenda. And so even if it's not the Supreme Court directly or the presidential candidates, abortion is going to be something on voters' minds in a lot of these places when they go to the polls.
KEITH: And quickly, Carrie, before we go, some people might be wondering about the other federal case that former President Trump faces related to his retention of classified documents and allegedly obstructing the investigation. Does this Supreme Court decision have any bearing on that?
JOHNSON: I'm still thinking through that, and it's going to take me a few days, but I can say that Judge Aileen Cannon, who was appointed to the bench in Florida by former President Donald Trump and who has issued many favorable opinions siding with Trump over the special counsel team, may take this as an invitation - an invitation to go through that indictment and think about whether some of Trump's activities were official acts that should have been covered by this immunity.
Of course, a lot of the activity at Mar-a-Lago happened after Trump left the White House. And even though he's been arguing that he somehow reclassified some of these papers and declassified some of these papers, there's no public evidence of that. So it's not clear yet really how much this immunity precedent will bind that Florida case.
The other thing that I'd point out is that Justice Clarence Thomas today wrote separately. He agreed about this broad swath of immunity for Trump, but he wrote separately to say that he would have touched another issue, which is that the special counsel, Jack Smith, was unconstitutionally appointed, and that's an issue that's currently live before Judge Cannon in Florida now, too.
KEITH: Well, then, there is a lot more to watch, and we will continue doing that. Before we go, a huge thank you to everyone who supports the show by signing up for NPR POLITICS PODCAST+. Especially this election year, your support matters. And if you haven't signed up for NPR POLITICS PODCAST+, now is your chance. You can get things like sponsor-free listening and bonus episodes. In our latest episode, Danielle Kurtzleben shares her reporting on a very particular Trump rally T-shirt that caught her attention. To sign up for Plus, just go to plus.npr.org/politics. I'm Tamara Keith. I cover the White House.
JOHNSON: I'm Carrie Johnson. I cover the Justice Department.
LIASSON: And I'm Mara Liasson, senior national political correspondent.
KEITH: And thank you for listening to the NPR POLITICS PODCAST.
(SOUNDBITE OF THE BIGTOP ORCHESTRA'S "TEETER BOARD: FOLIES BERGERE (MARCH AND TWO-STEP)")
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